Opinion
2212
November 18, 2003.
Judgment, Supreme Court, New York County (John Cataldo, J.), rendered January 3, 2001, convicting defendant, after a jury trial, of robbery in the second degree, and sentencing him, as a second felony offender, to a term of 8 years with 5 years post — release supervision, unanimously affirmed.
Jeffrey W. Davis, for respondent.
Salina M. Kanai, for defendant-appellant.
Before: Saxe, J.P., Sullivan, Rosenberger, Friedman, Gonzalez, JJ.
The 911 tapes that defendant sought to introduce did not qualify for admission under the present sense impression exception to the hearsay rule and were of minimal probative value with relation to the issues raised at trial (see People v. Brown, 80 N.Y.2d 729). In any event, were we to find that exclusion of any of the tapes was error, we would find the error to be harmless (see People v. Crimmins, 36 N.Y.2d 230). Since defendant did not assert a constitutional right to introduce this evidence, his constitutional argument is unpreserved (see People v. Angelo, 88 N.Y.2d 217, 222; People v. Gonzalez, 54 N.Y.2d 729), and we decline to review it in the interest of justice. Were we to review this claim, we would find no violation of defendant's right to present a defense.
The victim's statement to the police, made minutes after the incident, was properly admitted as an excited utterance because the evidence, including testimony as to the victim's demeanor, established that he was still under the influence of the stress of the incident (see People v. Alvarado, 294 A.D.2d 155, lv denied 98 N.Y.2d 708).
We perceive no basis for reducing the sentence.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.